Ltd. And Another vs The Union Of India And Others
2021 Latest Caselaw 735 Cal

AD. 3.
January 29, 2021.
 MNS.

                               W. P. A. 17312 of 2019
                               (Via video conference)

                      M/s. Greentech Environ Management Pvt.
                               Ltd. and another
                                         Vs.
                            The Union of India and others

                      Mr. Debasish Kundu,
                      Mr. Malay Krishna De,
                      Mr. Loknath Chakraborty,
                      Mr. Vinod Kumar Singh,
                      Mr. Dipak Kumar Chakraborty,

                                   ... for the petitioners.

                      Ms. Rajashree Venket Kundalia,
                      Ms. Rittwika Banerjee

                             ...for the respondent nos. 1 and 2

Mr. Jishnu Choudhury, Mr. Rabiul Islam

...for the State

Mr. Arjun Roy Mukherjee, Ms. Debapriya Mitra

...for the Pollution Control Board

Mr. Sakya Sen, Ms. Manali Ali, Mr. K. Chakraborty

...for the respondent no. 8.

Mr. Biswaroop Bhattacharya, Mr. Debasish De

...for the respondent nos. 9 and 10.

The petitioners participated in a tender

dated February 11, 2019 for selection of Common

Bio-medical Waste Treatment Facility (CBMWTF)

Operator(s) for Public Health Facilities in the

State. The said tender was floated by the

Department of Health and Family Welfare,

Government of West Bengal.

Learned senior counsel appearing for the

petitioners argues that the State Government did

not have the jurisdiction to float such tender, not

being any of the prescribed authorities stipulated

in Schedule III, Serial Nos. 5 and 6 to the Bio-

Medical Waste Management Rules, 2016.

Learned senior counsel places reliance on

definitions of several terms, as appearing in the

2016 Rules, in particular those of "authorisation"

under Clause (c), "authorised person" at Clause

(d), "bio-medical waste" in Clause (f), "bio-

medical waste treatment and disposal facilities"

[Clause (g)], "handling" in Clause (i), "occupier" in

Clause (m), "operator of a common bio-medical

waste treatment facility" in Clause (n) and

"prescribed authority" in Clause (o) of Rule 4 of

the 2016 Rules.

Learned senior counsel takes the court

through the provisions of Rule 6, which relates to

duties of authorities and refers to Schedule III to

the 2016 Rules in that regard. The provisions

regarding treatment and disposal, appearing at

Rule 7(3), the provisions regarding prescribed

authority as found in Rules 9(1) and ((3) and the

procedure for authorisation under Rule 10 and

provisions regarding Advisory Committee

stipulated in Rule 11(1) of the 2016 Rules are

also relied on.

Learned senior counsel places particular

reliance on Serial Nos. 2, 5 and 6 of Schedule III

to the 2016 Rules, which mentions the relevant

authorities for performing the corresponding

duties.

It is highlighted by the petitioners that, it is

the State Pollution Control Board for States and

the Pollution Control Committee for Union

Territories, which has the authority and the duty

for monitoring compliance of various conditions

and authorization, granting and renewal or

suspension or refusal or cancellation or for

authorisation under the Rules, etc., which pertain

to the scope of the impugned tender. The State

Government of Health merely has an advisory

role in that regard, as per Rule 5, it is argued.

Learned senior counsel further places

reliance on paragraph nos. 5 and 6 of the

affidavit-in-opposition used by the respondent no.

8 to indicate that the State Government of Health

arrogated to itself the jurisdiction which has to be

exercised by the State Pollution Control Board

under the relevant rules as mentioned earlier.

Learned senior counsel cites two

judgments, reported respectively at (2019) 20

SCC 143 (with particular reference to paragraph-

86 thereof) and (1986) 1 SCC 133 (particularly

paragraphs- 117 and 118) in support of the

proposition that an action without jurisdiction is

null and void and has to be set aside.

As regards the petitioners having

participated in the tender and having failed to be

chosen as a successful bidder, learned senior

counsel argues that such factor is irrelevant for

the present purpose, in view of the tender

process itself being vitiated by utter lack of

jurisdiction.

Learned senior counsel also seeks to point

out several other discrepancies in the tender

process, inasmuch as, according to him, the

successful bidder does not have sufficient past

expertise or knowledge in the field and lacks the

experience of having set up a bio-medical waste

treatment plant in the State of West Bengal. It is

submitted that the only such plant established by

the successful bidder is at Lucknow.

Be that as it may, it does not lie in the

mouth of the petitioners to challenge the tender

process, after having participated in the same

and having turned out to be unsuccessful.

In the event the petitioners did not have

any direct interest in the matter and was a third-

party to the tender process and if the present writ

petition was in the nature of a Public Interest

Litigation, there might have been a scope of

consideration of the question of jurisdiction as

raised herein.

However, the petitioners, being

unsuccessful participants in the tender process,

do not have locus standi to resile now and

challenge the tender process itself. The

petitioners squarely submitted to the tender

process. Although there might have been an

alternative argument, that absence of jurisdiction

vitiates the process itself, thereby rendering the

participation of the petitioners irrelevant, such a

proposition cannot be applied in the present case,

since the petitioners failed in the tender process,

after having participated in the same, thereby

attaching to itself the character of an opportunity-

seeker in the present context.

Moreover, the present challenge is

premature, since the tender floated was for the

purpose of selection of common bio-medical

waste treatment facility operators. Even if the

authority issuing such tender does not have

jurisdiction, the question of contravention of the

relevant clauses of Schedule III, as discussed

above, come into the play only when licence is

granted or assignment is given to the successful

tenderer for the purpose of doing the job as

contemplated in the tender.

However, in view of the above

observations, this Court need not go into the

merits of the question of jurisdiction of the

tendering authority at all. It is made clear that the

merits of the matter have not been gone into in

view of the petitioners being held to have no

locus standi to prefer the instant writ petition in

the light of the aforesaid discussions.

Accordingly, W. P. A. 17312 of 2019 is

dismissed without any order as to costs.

Urgent photostat certified copies of this

order, if applied for, be made available to the

parties upon compliance of the requisite

formalities.

(Sabyasachi Bhattacharyya, J.)